Monday, January 29, 2007

Raw International Law

Via Instapundit, I came across a paper by Professors John McGinnis (Northwestern Law School) and Ilya Somin (George Mason Law School), entitled "Should International Law be Part of Our Law?" I suspect the actual heart-of-hearts answer in all cases, according to the authors, is probably "no, hell no, never." To be fair, the authors are not particularly exercised about what they term "domesticated international law" --- law which has gone through the domestic political process, i.e., a treaty that has been ratified, or domestic legislation enacted that directs the incorporation of international law --- but they are quite exercised about what they term "raw international law," law that becomes a part of U.S. law through court decisions. Roger Alford, at Opinio Juris, has a short reference to the article (described as "provocative"), but most interesting to me are the to-and-fro in the debate between Matthew Gross and Benjamin Davis played out in the comments to the Alford piece.

As the distinction between the above two catgories illustrates, the authors professed concern is with circumvention of the democratic processes by unelected judges, particular liberal judges. I think it accurate to define a liberal judge in this context in a peculiar fashion as someone who would even look at international law as is said in Talmudic studies, as "zeker le-dabar," not as actual proof for the meaning of a text, but rather as a reference to further support for one's own interpretation of one's own text by pointing out others interpret similar texts the same way. This is what happened in two Supreme Court opinions that infuriated conservatives, Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S. 551 (2005), the latter involving the death penalty as applied to juveniles.

I confess to not understanding, jurisprudentially, what the uproar is about. In Roper, the majority did not claim that its decision was determined by treaties or decisions in other countries. I therefore find it inaccurate for the authors to state that "the Court applied international material that the political branches expressly refused to carry into the transom of domestic law," if by "applied" we mean part of U.S. law. So long as a claim is not made that international or foreign law compels U.S. law be construed a particular way (other than in a situation where a treaty the U.S. has ratified is at issue) why shouldn't courts try to gain as much knowledge as possible from whatever sources as possible? I understand quite well what the political rhetoric is about, though, and that is, conservatives don't want judges interferring with the executive branch during a Republican Administration.

At the same time, conservatives are quite right in crying foul for liberals' efforts to directly incorporate customary international law (CIL) into U.S. law, and quite right to describe this, as the authors do, as a "democratic deficit." Modern customary international law advocates assert that CIL provides a private course of action directly, justiciable in federal court. But federal courts are courts of limited jurisdiction; they require a specific grant of authority and cannot create their own jurisdiction. The mere existence of CIL is not itself such a grant. On this score, I wholeheartedly agree with the authors about the dangers to our democratic institutions posed by CIL advocates.

In the copyright field, in Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998), the issue was whether to apply foreign law to ownership of articles written by foreigners and first published in their own country (Russia). If U.S. law applied plaintiffs had standing; if Russian law applied, they didn't. In applying Russian law, Judge Newman wrote that the court was "fill[ing in] the interstices of the [Copyright] Act by developing federal common law on the conflicts issue." This approach, one of a federal "interpretative" common law, recognized by the Supreme Court in Smith v. Alabama, and applied regularly in maritime cases, may be contrasted with the creation of a separate body of choice of law rules to be interposed between the U.S. Copyright Act and foreign copyright law. This is not the approach taken in Itar-Tass. Itar-Tass may be said to have interpreted the Copyright Act as permitting the application of foreign law on ownership; it did not create a new federal common law of copyright conflicts of law. This approach is consistent with the Supreme Court’s decision in Texas Industries, Inc. v. Radcliff Materials, Inc., which held that the appropriate types of federal common lawmaking are "few and restricted" and fall into two categories, those "necessary to protect uniquely federal interests and those in which Congress has given the courts the power to develop substantive law." The latter category is the one which applies to copyright since Congress has delegated to the courts the power to create the most important substantive doctrines in copyright law: who is an "author," when is a work "original," and when is a work infringed? Courts previously developed the critical fair use defense, which Section 107 merely statutorily recognizes, but does not codify. In short, Itar-Tass’ development of copyright choice of law rules is of a type Congress has empowered the courts to create when construing the Copyright Act. Rather than creating external choice of law rules, Itar-Tass should be understood as interpreting the Copyright Act (in particular Section 104) as authorizing courts to develop choice of law rules in applying the Act in situations where choice of law problems are encountered. This is closer to the "domesticated" international law than the "raw" international law referred to by Professors McGinnis and Somin.

10 comments:

Ryland
said...

Good morning Professor, this is an interesting issue, one which I am in the midst of reviewing in the context of copyright registration. The context being that under UK law a work would be protected and what choice of law the US Copyright Office would take in allowing or denying such a registration. So far, the CO would apply US law is what I found, and yet another view would be the one that you have laid out here which is that it would be left up to the courts.

Yours seems a flip of Judge Kaplan's Bridgeman case in the SDNY. If, say, in any foreign country there was protection for a type of work we don't protect (or which applying a lower level of originality to a type of work we do), my guess is the Office would deny registration. Itar-Tass dealt with a much different issue, ownership of admittedly protected works in both countries.

/* I confess to not understanding, jurisprudentially, what the uproar is about. In Roper, the majority did not claim that its decision was determined by treaties or decisions in other countries.*/

In Atkins, the Court decided that stare decisis did not apply because society's views had evolved since the last time the Court had ruled on executing mentally retarded people. Likewise, in Roper, the Court determined that it ought to overturn a 1989 decision for the same basic reason (again, where's stare decisis?).

And part of the reasoning for what appears to be an ad hoc decision to not apply stare decisis was that other countries didn't execute the same people the US executed. So, while the Court did not "apply" foreign law, it appears to have relied on foreign law in the decision. Would there be a similar uproar had the Court relied on Deuteronomy in its decision, even if the Court refused to actually apply Mosaic Law? Sure, the Court isn't allowed to actually apply Mosaic Law, but, after all, these judges are well-trained and know exactly how much they can rely on outside sources in their reasoning.

And would it be OK for the Court to simply explain its already-determined decision by quoting Mosaic Law? No relying on Deuteronomy, no applying Mosaic Law, just intellectual piling on explaining why the decision was the right one?

For the record, I do not like stare decisis, but I definitely don't like "stare decisis applies to Supreme Court decisions except in cases that it doesn't apply; trust us, we know the difference."

/* I understand quite well what the political rhetoric is about, though, and that is, conservatives don't want judges interfering with the executive branch during a Republican Administration.*/

I will grant that many people complaining have ulterior motives. OTOH, "conservative" has many definitions, and one is "strict construction of the Constitution, and reliance on federalism and States Rights." That group is honest in its concern that the Supreme Court (and lower courts) are either engaging in unnecessary intellectual piling on, or are relying on documents that aren't "law" as defined in the Constitution or Rules of Procedure set out by Congress.

I have a much different view of the Itar-Tass case (which I've written about at length in the Harvard International Law Journal).

It's true that the courts sometimes fill in the interstices of the Copyright Act, such as in defining "originality" or infringement. But the Itar-Tass case is materially different: Congress had already spoken about the issue of copyright ownership in the work made for hire provision. There is absolutely no suggestion in any legislative history that Congress delegated to courts the power to override the U.S. work made for hire provision and substitute in its place the Russian work made for hire provision, as the Second Circuit ultimately did. The Second Circuit wasn't filling the interstices of the U.S. work made for hire provision; it simply threw it aside in favor of the Russian provision, even though the case involved a U.S. copyright claim. I'm not sure calling this "conflicts of laws" can justify this use of foreign law to decide a U.S. copyright claim.

Max, thanks for your thoughtful post. Both cases as I read them turned on readings of how the states had decided issues in the years after the case that raised the stare decisis issue yopu pointed out, not how foreign courts had.

As to Atkins, that case involved questions of a national consensus among states. Thus, in describing the grant of cert, the majority wtre: “Because of the gravity of the concerns expressed by the dissenters, and in light of the dramatic shift in the state legislative landscape that has occurred in the past 13 years, we granted certiorari to revisit the issue that we first addressed [in Perry.”

Justice Rehnquist’s dissent begins: “The question presented by this case is whether a national consensus deprives Virginia of the constitutional power to impose the death penalty on capital murder defendants like petitioner, i.e., those defendants who indisputably are competent to stand trial, aware of the punishment they are about to suffer and why, and whose mental retardation has been found an insufficiently compelling reason to lessen their individual responsibility for the crime. The Court pronounces the punishment cruel and unusual primarily because 18 States recently have passed laws limiting the death eligibility of certain defendants based on mental retardation alone, despite the fact that the laws of 19 other States besides Virginia continue to leave the question of proper punishment to the individuated consideration of sentencing judges or juries familiar with the particular offender and his or her crime.” The issue was therefore driven by the state of state law. That the majority referred to a brief by thr EU in no way detracts from the clear basis for cert and the basis for the decision; even in terms of ground covered by the majority, reference is not reliance, and Rehnquist himself described it as “adverting” to the brief. The description of Atkins as relying on foreign law is wildly off-base.

As for Roper, it too turned on the question of a national consensus: here is what the majority said:

After these proceedings in Simmons' case had run their course, this Court held that the Eighth and Fourteenth Amendments prohibit the execution of a mentally retarded person. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Simmons filed a new petition for state postconviction relief, arguing that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed.

“a national consensus has developed against the execution of juvenile offenders, as demonstrated by the fact that eighteen states now bar such executions for juveniles,*560 that twelve other states bar executions altogether, that no state has lowered its age of execution below 18 since Stanford, that five states have legislatively or by case law raised or established the minimum age at 18, and that the imposition of the juvenile death penalty has become truly unusual over the last decade.” 112 S.W.3d, at 399.

On this reasoning it set aside Simmons' death sentence and resentenced him to “life imprisonment without eligibility for probation, parole, or release except by act of the Governor.” Id., at 413.

Thanks for calling my post "thoughtful." I honestly intended it as such, but worried that it might sound more "snarky."

As I've said many times, I'm not a lawyer, so it may well be my tastes in what a "proper" legal opinion should look like are misguided. However, the use of "raw international law" in court opinions seems -- to me -- to be either "unnecessary intellectual piling on" (in the words of Scalia) or inappropriately citing to material that shouldn't be considered in a judgement.

I remember that when both Atkins and Roper were issued I made it a point to actually read the opinions. International law intrigues me because it lumps so many disparate issues together. You've got adopted treaties, enacting legislation, the Laws of War (approved in the Constitution, of course), NAFTA, contracts that cross national boundaries, various actions by the UN, WIPO, WTO, etc. So, I have to admit, I was a little let down that Roper and Atkins did not live up to the hype. There's a difference between holding and dicta, and the "international" parts of those opinions were clearly dicta.

But, it seems to me, some dicta can be dangerous, and some dicta is definitely inappropriate. On the one hand you've got Scalia labeling the two sides of a question as sheeps and goats; which may be a bad way to phrase things but doesn't really affect the reasoning of the opinion. On the other hand, you simply can't put in dicta straight from the Mosaic law without raising the hackles of the ACLU. Likewise, it would make little sense for the Court to begin an opinion "although the laws of France do not apply in this case, and although US contract law is wildly different from French contract law, and although this isn't even a contract case, we find it interesting to note what this completely different legal system says."

And it really bugs me when the Court refuses to revisit some opinions, citing nothing other than stare decisis, but revisits other opinions and puts in this kind of inappropriate dicta. Whether a national consensus can determine whether something is Constitutional (and whether the Court is better able to judge the national consensus than, say, the House of Representatives) is another of my pet peeves. But that would take this conversation too far afield.

/Courts previously developed the critical fair use/defense, which Section 107 merely statutorily /recognizes, but does not codify.

What do you mean when you say that 107 does not "codify" the fair use defense? What's the significance of the difference? That it remains an equitable, rather than legal defense? Does that mean more than that it has to be affirmatively pled? Are you referring to its indefinite scope? The implicit discretion? Is it different than saying that 106 does not codify the author's exclusive rights because the Act doesn't define "distribute"?

Doesn't the enactment "codify" the defense at least in the sense that its consideration becomes obligatory, the defense more "reliable"?

John, what I meant by the statutory recognition versus codification distinction for fair use is this. The purpose of Section 107 as stated in the legislative history was initialy simply to acknowledge that the doctrine existed as a defense to an infringement claim. The Copyright Office was worried that in an omnibus revision, unless fair use was at least mentioned, courts might think Congress had impliedly repealed it.

Originally, Section 107 was to read merely: "Notwithstanding the provisions of section [106], the fair use of a copyrighted work is not infringement." Period. No one would have though that "codifed" fair use; rather, the existence of the doctrine was "recognized" in the statute.

Unfortunately as the revision process went along, fair use became the football in the debates over photocopying between educators on one hand, and authors/publishers one the other. Their battles were resolved in part by Section 108 and in part by greatly adding to Section 107.

But the steroid-version of Section 107 was never intended to codify fair use in the sense of Section 108: with Section 108, it is "here is the defense, in substantive, apply it as written." Instead, Section 107 says: "here are some things that might be fair use and these are some things you look at to see if those things are fair use." But section 107 doesn't tell you what fair use or even how to apply its provisions.

The distinction beomes important when courts fail to realize Section 107 does not embody fair use butinstead provided some things to look at in evaluating a fair use claim. Too many courts have not realized that fair use remains a common law doctrine, one they can shape themselves. Instead, they treat Section 107 as if it was Section 108, to be interpreted. You don't interpret Section 107.

Nothing in Section 107 defines fair use, as contrasted with, say, the definitions of "copy" etc. in Section 101. It is true as you point out that "distribute" isn't defined, but neither is "choreography" or "musical composition" or lots of other terms. In those cases, Congress meant courts are to apply the ordinary meaning of those terms. There is no ordinary meaning of fair use, but rather a 200 year common law doctrine.

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